Ruling: Pot allowance should be jury’s call

Using state possession limits called improper

A state appeals court in San Diego has ruled that exactly how much marijuana a medical-marijuana user can legally possess is a question that jurors should decide, and using limits defined in state law is improper.

The unanimous ruling could mean a shift in how some medical-pot cases are handled at trial, legal experts said. It also anticipates a ruling expected soon from the state Supreme Court that deals with a similar issue.

Nathaniel Archer of San Diego was appealing his 2007 convictions for cultivating and possessing marijuana. Archer was a medical-marijuana patient who was arrested by San Diego police with 98 pot plants in his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court reversed his convictions for possession of the drug, concluding that it was wrong to use limits that the Legislature established in 2003 on the amount of marijuana a patient could have. That law amended the Compassionate Use Act, the voter-approved initiative in 1996 that allowed the medical use of marijuana. Under the state constitution, the Legislature can’t amend an initiative, unless doing so is specifically allowed in the initiative’s language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an unrelated case, and a ruling is expected soon. Most observers expect the court to strike down the numerical limits as unconstitutional.

In Archer’s case, the Attorney General’s Office conceded that the numerical limits were indeed unconstitutional, the opinion says. It argued his possession conviction should stand because telling jurors to use the numerical limits, as Superior Court Judge Kerry Wells did at Archer’s trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said that with both sides conceding the numerical limits were unconstitutional, the only standard that could be applied was whether the amount of marijuana was “reasonably related” to a patient’s medical needs.

Archer testified that he used about half a pound of marijuana per month. It would be up to a jury to decide how much of the 1.7 pounds he possessed — about a three-month supply, Benke calculated — was reasonably related to his medical needs.

Russell Babcock, Archer’s lawyer, said the decision will have an impact on other cases.

Some patients use large amounts of the drug, because they use it in baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and head of San Diego’s Medical ﻿Marijuana Task Force, said that the decision is important because it means people will not be automatically subject to prosecution if they exceed the limits.

Kreit said he did not think it would open a new line of argument for people with large amounts of marijuana to avoid prosecution, or conviction by juries. He said defendants still would have to convince a jury that the amount of marijuana they had was appropriate.

“Folks would still have to make that argument, so I don’t think there is a lot of downside to the ruling,” Kreit said.

The appellate court upheld Archer’s conviction for illegally cultivating the drug because he did not fit the definition of a “primary caregiver” under the law. The court also agreed that he was guilty of illegal cultivation because he was growing pot for at least two other people.

Archer testified that he was growing marijuana for four others in addition to himself, at least two of whom were also medical-marijuana users. He refused to identify the other two when he testified at the trial, the decision says.